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Priests Should Not Be Forced to Break the Seal of Confession

According to the Catholic News Agency a priest in Louisiana may be forced to reveal what was said during a confession when he testifies in an upcoming civil suit. The article says,

In May, the state Supreme Court ruled that the priest in question, Fr. Jeff Bayhi, may be subject to mandatory reporting laws regarding sexual abuse, and cannot invoke the privilege of confidentiality regarding an alleged confession made to him about sexual abuse by a young girl.

The diocese explained that a priest is under the gravest of obligations not to reveal the contents of a confession or if the confession even took place. He cannot do so even under threat of imprisonment or civil penalty, and incurs automatic excommunication if he breaks the “seal of confession.”

I’m not going to comment on the specifics involved in the case with Fr. Bayhi because, frankly, doing so would be irresponsible. Most stories covering this case take advantage of the fact that both dead men and priests who hear confessions can’t defend themselves. Instead, of focusing on what Fr. Bayhi allegedly said in the confessional, I’d like to focus on a broader issue. Namely, when a priest learns about child abuse in the confessional, either from a victim or a perpetrator, should he be legally compelled to report that abuse to the authorities? Should he be compelled to testify about what he heard in the confessional in a courtroom?

Debating the Seal of Confession

For most Catholics the issue is cut and dry, summarized pithily in the Catholic code of canon law – “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” (Canon Law # 983. §1)

But among secular observers it’s not so clear. They say that, yes, communication between clerics and penitents is privileged, but so is communication between doctors and patients. However, in most states the law mandates doctors to report any suspicion of child abuse. This also applies to other professionals like teachers, therapists, and law enforcement. Should priests be treated differently than everyone else just because of their religious views?

Now, it’s certainly true that we should act in any reasonable way to protect children from child abuse, but we can think of many things the government should not do even when it comes to the lofty goal of protecting children from abuse. For example, the government should not secretly make audio recordings in our homes even if the goal were to protect children from abuse because losing the good of privacy outweighs any possible good that could come from such a tactic (not to mention it being an affront to the rights we have under the fourth amendment).

Even if doctors and teachers are required to report child abuse, there may be some groups who should not be required to report it because the harms of requiring them to report would be too great and certain fundamental rights would be violated as a result. I can think of one group this would apply to besides priests, which shows that such an exemption is not unfair or unheard of -- defense attorneys.

Will the Defense Rise?

As far as I know, no state requires a defense attorney to report suspected child abuse if he learns about such abuse from his client. Of the nearly 50 kinds of people required to report suspected abuse in California, none of them are defense attorneys. One 2006 article from the New Mexico Law Review even says such mandatory reporting would hurt domestic violence vcitims.

Of course, an attorney is free to stop working with a client he suspects may have abused a child, but he can’t divulge what the client told him about the past crime to anyone else. This is part of a confidentiality privilege that has existed for a long time in the law called attorney-client privilege. According to Geoffrey C. Hazard,

The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions. It is considered indispensable to the lawyer’s function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyers function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure.

Now, there are exceptions to attorney-client privilege. One exception includes communication that involves both the client and attorney planning to commit a crime together, such as plans to destroy evidence or to “cover up” a past crime. Another exception would be if the client says he plans to commit a future crime that will cause serious harm, which; in that case, the attorney must then report to the authorities.

But in general, communication about a past crime to an attorney is privileged and must remain confidential -- but why? Isn’t reporting child abuse more important than helping criminals and their “sleazy” defense attorneys?

Stopping abuse is important, but it’s not worth overturning one of the fundamental components of our justice system. It’s not worth losing the role of an advocate who will provide someone accused of a crime, be he guilty or innocent, the best possible defense in a court of law.

So how does this relate to priests being forced to divulge what they learn in confession?

Rights of the Accused and the Damned

Just as forcing defense attorneys to report suspected child abuse would have the chilling effect of discouraging those accused of abuse from seeking legal counsel that can help them stay out of jail, forcing priests to report suspected child abuse that they learn about through the confessional will have the chilling effect of discouraging those who have committed those crimes from seeking absolution that can help them stay out of Hell.

While it’s important to stop child abuse, we can’t accomplish that goal through the deprivation of our fundamental rights (such as government surveillance of our homes that I mentioned earlier which would violate our right to privacy). For Catholics, this includes the right to see a priest and through him have God forgive us of our sins. While the seal of confession is inviolable in a way attorney-client privilege is not (since it allows for no exceptions), this makes sense because the stakes are infinitely higher.

Confession exists so that anyone, if he genuinely repents, can be forgiven of his sins no matter how heinous they may be. If the Church is accused of hiding abusers because of this narrow confidentiality privilege, then we can say that law firms are guilty of hiding abusers when they don’t turn in every client suspected of past abuse who confides in an attorney.

As Catholics, we aren’t asking for a sweeping exemption so that everything ever said to a priest is “off the record.” We are just asking for, oh, I don’t know, a wall of separation between Church and State. Specifically, a wall made up of the dark enamel of the confessional that lets us make “personal decisions” between ourselves, our priest, and our God without government interference.

If a man can be granted secrecy with his legal counsel so that he can protect his freedom, then that same man should be granted secrecy with his religious counsel so that he can protect his very soul.

After his conversion to the Catholic Faith, Trent Horn earned a master's degree in theology from Franciscan University of Steubenville and is currently pursuing a graduate degree in philosophy from Holy Apostles College.

Comments by Catholic.com Members

#1 Matt Kettmann - Waukee, Iowa

This also has the very real consequence of discriminating against Catholics. In order to properly practice their faith, a Catholic must confess his sins. If priests are required to report any crimes they hear in a confessional, then this basically means that practicing Catholics are forced to turn themselves in. No other faith that I know of would require this.

July 24, 2014 at 7:54 pm PST

#2 Bridget Bordelon - Jonesville, Louisiana

As a resident of Louisiana, I am appalled with, and embarrassed and ashamed of the state supreme court's decision. The individual members don't fare better either. The effort to force the priest to reveal what was told in Confession is all-out war on the Catholic faith. If a murderer's confession to his/her lawyer is privileged information and cannot be revealed, then how does the state court determine that the Sacrament of Confession is any different? The priest will likely be incarcerated because of his refusal to reveal, but it is a situation that we, as Catholics, will be facing in the future. Perhaps the governor, who professes to be Catholic, can use some of his influence to alter the court's decision. Maybe a lawsuit brought by the Vatican would be a better idea. One thing is certain though, all Catholics should be prepared to be a martyr for the Faith. It's coming to that, and sooner than any of us thought.

August 2, 2014 at 5:07 am PST

#3 Ryan Gill - Calgary, Alberta

I very much appreciate the work of Catholic Answers. I did find this article hard to accept.
One theme of this argument is comparing the government’s decision on morals to what the catholic Church practices. (a defense attorney is privileged to keep silent so therefore priests should also be allowed). Apostolic teachings should be leading governments; we should not be resting on governments giving examples of morals to the church.
I agree with the cannon of the seal of confession and I agree with apostolic authority. Ware this gets difficult is justice. If a priest knows of a crime would he not be responsible for protecting society from the individual falling into temptation once again? Unfortunately there are some people who need to be detained - they also need to be loved (MATT 25.36). If a priest knows of a potential threat to society he should be pasturing the individual to help him. I believe going to confession reconciles us with God – but we still have to deal with the consequences of sin here on earth. The sacrament of reconciliation should be used to make us better people not to make us more comfortable in sin.
There also seems to be some tension between the Church and State. As our first Pope pointed out we are to honor and accept the government – especially to do good. (1 Peter 2.13-18). Unfortunately there are times to choose a lesser of two evils. If a priest loses his job so the church and government can keep peace and detain a threat to society than maybe it’s God’s will.

August 2, 2014 at 6:18 pm PST

#4 Steven Way - Wright-Patterson AFB, Ohio

Catholic priests in Mexico were martyred because the socialist Mexican government wanted to force them to break the seal of the confessional.

August 6, 2014 at 5:44 pm PST

#5 Michael Rogala - Chicago, Illinois

I am in accord with the cogent reply of Ryan Gill. The Church needs to lead in the matter of protecting those who cannot protect themselves . . . the "anawim" . . . once limited to orphans and children.

Trent, your position is unconscienceable and repulsive to anyone with more than 2 brain cells functioning or a scintilla of moral rectitude. Saying

"will have the chilling effect of discouraging those who have committed those crimes from seeking absolution that can help them stay out of Hell"

exposes to a continuing "hell" those subjected to horrific abuse. The screwed up equating of attorney-client privilege with the seal of the confessional is a great example of folly. I mean all these molesting priests who destroyed the young lives have derived the benefit of counsel. I may be angry about that but that is the law of this nation. . . and like it or not, I must render to Ceaser what belongs to Ceaser. And so do you!

The confessional cannot become a haven for molesters, those who will go and commit murder, choose to suicide or other such crimes against persons.

August 11, 2014 at 1:44 pm PST

#6 Matt Aln - Vancouver, British Columbia

Trent, you indicated that it would be irresponsible to discuss the specific facts of the Court case you cite, yet your failure to do this, and your failure to distinguish between the different types of information a priest might receive, is just that - irresponsible.

You seem to mix up two different types of information, and use one or the other as it suits you to make your argument. One type of confession would relate to past crimes. Another type of confession would relate to an ongoing crime or a stated intention to commit or continue a crime in the future. There is a difference between "I abused a child" and "When I get home I'm going to abuse a child again." The distinction is very important.

In my jurisdiction, a defense attorney cannot disclose information received from his client. You are correct that there are exceptions to this. One exception would be if the client indicated an intention to commit a crime. Therefore, an admission of previous crimes would be protected, but an expressed intention to abuse a child would require the lawyer to advise the authorities. I would be surprised if this wasn't the case in most jurisdictions.

I don't know what rules apply to priests from a legal perspective but I would suspect similar rules would apply. I have no objection to this.

There is another exception to the lawyer-client privilege - waiver. If the client waives the privilege then the lawyer is not required to keep it confidential. More on this later.

I agree we should not wire tap every home to prevent child abuse. This is a rather silly analogy. We can and do, however, obtain warrants which involve the court-sanctioned violation of some rights where there are reasonable grounds to believe that a crime has been committed. Again, we have rights but they are not limitless as you would like it to be for the confessional. In other words, we should be deprived of some rights in a measured and Constitutionally acceptable way to stop child abuse. The law recognizes this.

Now regarding the case at hand, it involved, as I understand it, the divulgation by the child of the ongoing abuse. I am disappointed you did not point this out, and I understand why.

(1) This was not the abuser confessing past abuse. Rather this was an innocent child being subjected to abuse.

(2) The Court case is a civil action against the church for the priest's failure to protect the child. Therefore, in this case, the privilege is being asserted not to protect the sanctity of the confessional, nor the innocent child's privacy, but to protect the church from financial liability.

(3) The lawsuit is presumably brought by the parents on the child's behalf so the child has likely legally waived any obligation on the part of the priest to keep it confidential. She has given him permission and probably even asked that he be required to tell the Court what she told him and yet he refuses. We know why.

When it comes to the protection of children the church just doesn't get it.

September 8, 2014 at 11:36 am PST

#7 Dave Drummond - Bozeman, Montana

I agree with both Trent Horn and Ryan Gill. Considering his audience, perhaps Trent missed an opportunity to clarify the obvious. As his justification, Trent chose to make the more lofty "salvation of the soul" argument, rather than the secular "protection of the victim/society" argument.

Pointing out the Church's "Charter for the Protection of Children and Young People" which is being propagated throughout the United States, Trent could have argued that outside of confession, priests have the same obligation as anyone else in reporting known crimes. However, breaching the seal of confession would have the undesired consequence of eliminating any chance that the perpetrator would get needed counseling that might prevent future crimes.

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The One True God - Pack Of 50 TractsThe first Christians, like the Jews before them, were fiercely monotheistic, willing to die horrible martyrs’ deaths in the Coliseum—being slain by gladiators, devoured by wild animals, crucified, or tied to a stake and turned into human torches—rather than concede the existence of any other gods. The first Christians took God at his word and were willing to stake even their lives on the certainty that there is only one God.

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